Barnes v. U.S., 05-2329.

• Decision Date: 30 May 2006
• Docket Number: No. 05-2329.,05-2329.
• Citation: 448 F.3d 1065
• Parties: Lee A. BARNES, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

448 F.3d 1065

Lee A. BARNES, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 05-2329.

United States Court of Appeals, Eighth Circuit.

Submitted: January 13, 2006.

Filed: May 30, 2006.

Counsel who presented argument on behalf of the appellant was Larry Delano Coleman of Raytown, MO.

Counsel who presented argument on behalf of the appellee was Charles M. Thomas, AUSA, of Kansas City, MO. Thomas M. Larson, AUSA, of Kansas City appeared on the brief.

Before WOLLMAN, LAY, and ARNOLD, Circuit Judges.

ARNOLD, Circuit Judge.

Lee Barnes appeals the dismissal by the district court¹ of his action filed under the Federal Tort Claims Act (FTCA), see 28 U.S.C. §§ 1346, 2671-2680. We affirm.

Mr. Barnes owned and operated Gammon Brothers Poultry, a business that processed and packaged chickens in Missouri. Under the Poultry Products Inspection Act, 21 U.S.C. §§ 451-471, Gammon Brothers was subject to inspections by the Food Safety and Inspection Service (FSIS), an agency of the Department of Agriculture. Mr. Barnes brought this FTCA action against the United States. He claimed that the FSIS negligently inspected Gammon Brothers, issued vague and misleading noncompliance notices, failed to provide him with technical assistance, and subjected the company to unnecessary periodic shut-downs, eventually causing him to go out of business.

The government moved to dismiss Mr. Barnes's complaint for lack of subject matter jurisdiction. Federal courts generally lack jurisdiction to hear claims against the United States because of sovereign immunity. The court may hear the case, however, if the plaintiff shows that the government has unequivocally waived that immunity. Cf. V S Ltd. P'ship v. HUD, 235 F.3d 1109, 1112 (8th Cir.2000). The FTCA waives the government's immunity in certain tort suits by providing that the "United States shall be liable [for torts] ... in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. This provision is sometimes called the "private analogue" requirement. The district court granted the government's motion to dismiss, holding that there is no private analogue of the present action under Missouri law.

The determination of whether a private analogue exists is made in accordance with the law of the place where the relevant act or omission occurred. 28 U.S.C. § 1346(b)(1). Relying on Scottsdale Ins. Co. v. Ratliff, 927 S.W.2d 531 (Mo.Ct.App.1996), Mr. Barnes contends that his FTCA action may proceed because Missouri law recognizes a cause of action for negligent inspection and negligent advice. But for a defendant to be liable under those theories, it must have first owed the plaintiff a duty under Missouri law to inspect and to advise, and Missouri law imposed no such duty on the FSIS. Although the FSIS is required to follow the inspection standards established by its administrator, 9 C.F.R. § 381.4, this duty is imposed by the federal government, not by the state.

Mr. Barnes maintains that the government is nevertheless liable under Missouri's "good Samaritan" rule, a principle under which one who "`undertakes ... to render services to another'" may sometimes be held liable for a failure to exercise reasonable care in doing so. Stanturf v. Sipes, 447 S.W.2d 558, 561-62 (Mo.1969) (per curiam) (quoting Restatement (Second) of Torts, § 323). He relies on Indian Towing Co. v. United States, 350 U.S. 61, 61-62, 76 S.Ct. 122, 100 L.Ed. 48 (1955), in which the plaintiff brought an action under the FTCA, contending that its tugboat ran aground because the Coast Guard failed to maintain a lighthouse. The United States sought dismissal for lack of subject matter jurisdiction; because no private person operated lighthouses, the government argued that there was no private analogue of the government's conduct. The district court granted the motion, and the Fifth Circuit affirmed, Indian Towing Co. v. United States, 211 F.2d 886, 886 (5th Cir.1954) (per...